Scottish Law Officers: roles and functions research report

Chapter 2 History and Development of the Scottish Law Officer roles

2.1 The offices of Lord Advocate and Solicitor General for Scotland are important ones with a long history. The offices predate the Acts of Union. The development of the Lord Advocate’s role in particular is traced below. It has been suggested^[5] that the nature of the functions of the Lord Advocate and the Solicitor General for Scotland have during their history gone through a “monarchical” phase, a “predominantly political” phase, and thereafter a “predominantly legal” phase. These phases are described below.

Lord Advocate

Monarchical phase

2.2 The Lord Advocate is appointed by Royal Warrant. The Lord Advocate (and the Solicitor General for Scotland) are not precluded from membership of the House of Commons (as Advocate Deputes are).^[6] As regards the title of the office, the Royal Warrant appointing the current Lord Advocate refers to the Office of Her Majesty’s Advocate in Scotland or Lord Advocate.

2.3 As to the earliest history of the office, there is commentary^[7] noting that a manuscript in the Scottish Records Office indicates in 1476 that John Ross was appointed to act as King's “Commissioner” for the hearing of a case in Stirlingshire. In the following year he was appointed “Procurator for the Crown” in an Edinburgh case. On 8 June 1478, he again appeared before a court in Edinburgh, in the Tolbooth, designated “Advocate for the King”. There is a reference to a named Lord Advocate in July 1483, when John Ross of Montgrennan appeared for the Crown, James III, in proceedings against the Duke of Albany. Further commentary^[8] warns against confusing the title as it appears in historical records with the substantive role of the Advocate which, it is argued, does not appear to be consistently or fully formed until slightly later, during the reign of James IV. Conor McCormick suggests that a very general timeframe of about the end of the fifteenth century may be the birth of the first King’s Advocate.^[9] This period may be regarded as the “monarchical phase” of the Lord Advocate’s existence.

2.4 On prosecution functions, it appears that until towards the end of the sixteenth century actions for breach of the criminal law were taken almost exclusively by private individuals. These arrangements were replaced over time by a public prosecution system for which the King’s Advocate was primarily responsible.

2.5 Over time, it became usual for the King’s Advocate or Lord Advocate to appear in criminal cases generally. In the sixteenth century there was enough work for an Advocate Depute to be appointed. In 1579, the Privy Council directed the Advocate to prosecute criminals even if the relatives of the victim failed to do so. Under the Jurors Act 1587, the Lord Advocate was given the right to prosecute in “slaughters and utheris crimes”. A case in 1719 confirmed that the Lord Advocate's title to prosecute was not extinguished by a pardon granted by the victim. In a case in 1829, the court decided that if the Lord Advocate granted immunity to the accused, a private prosecution on the basis of a bill of criminal letters was not competent.

2.6 This system of public prosecution ensured a greater consistency in the administration of justice and provided the potential for higher revenue payable to the Crown as compensation for criminal acts.

2.7 It appears that the current system has been in place since the end of the nineteenth century. Scotland therefore had in place a largely public prosecution service well before the Crown Prosecution Service for England and Wales was established in 1986 by the Prosecution of Offences Act 1985.

Predominantly political phase

2.8 The Lord Advocate was one of the Officers of State entitled to sit ex officio in the pre-Union Scottish Parliament, the Estates of Parliament. In 1725 the Lord Advocate became in effect the only Minister for Scotland, following the removal from office of the Duke of Roxburghe as a Secretary of State dealing exclusively with Scottish matters (known as the Third Secretary). Leaving aside a period between 1741 and 1746 when the office of Third Secretary had been temporarily revived, the Lord Advocate was the sole Scottish Minister for this period. In addition to his primary functions as a Law Officer, he inevitably became involved in a wide range of responsibilities at departmental level in relation to all the functions of central government in Scotland. The functions of Lord Advocate expanded to fill the vacuum covering not only the administration of the prosecution and courts system, but also the supervision of the police and armed forces. So it was observed in 1824 that “it has been said advisedly and on the most solemn occasions, that the Lord Advocate is the Privy Council of Scotland, the Grand Jury of Scotland, the Commander in Chief of the Forces of Scotland, the guardian of the whole police of the country and that, in the absence of higher orders, the general management of the business of Government is devolved upon him.”^[10]. This period can be regarded as the “predominantly political” phase of the Lord Advocate’s existence.

Predominantly legal phase

2.9 This remained the position until the office of Secretary for Scotland was created by the Secretary for Scotland Act 1885, section 2. The 1885 Act transferred to the Secretary for Scotland the departmental exercise of all non-legal functions of government. The result of the Act is that the Lord Advocate’s office was seen as reverting to its original, predominantly legal character.^[11] The distinct position of the Lord Advocate as a Minister continued, however. The 1885 Act specifically provided that “nothing in this Act contained shall prejudice or interfere with any rights, powers, privileges, or duties vested in, or imposed upon the Lord Advocate by virtue of any Act of Parliament or custom”.^[12]

2.10 Against that background, leading up to the transfer of functions to the Scottish Office, it appears that the involvement of the Lord Advocate in these same functions continued after 1885, by way of assistance to the Scottish Secretary.

2.11 In 1973, a number of Ministerial functions of a legal nature were transferred to the Lord Advocate from the Secretary of State.^[13] This conferred on the Lord Advocate statutory functions relating to the Scottish Law Commission, formerly exercised by both Ministers, functions relating to the Council on Tribunals and its Scottish Committee, certain of which were exercised with the Lord Chancellor, powers relating to rules regulating procedure in connection with statutory inquiries and proceedings before certain tribunals held in Scotland, and laying before Parliament memoranda in relation to certain statute law consolidation.

2.12 The Lord Advocate also assumed Ministerial responsibility for certain branches of the law connected with the administration of justice. These included the jurisdiction and procedure of Scottish courts in civil proceedings, the law of evidence and the law relating to prescription and limitation of actions, the law relating to arbitration and the law relating to fatal accident inquiries. In the exercise of these functions the Lord Advocate had the support of the Scottish Courts Administration, which was answerable to him in this respect while answerable to the Secretary of State for other related functions such as organisation and staffing of the courts.

2.13 There were certain other functions with which the Lord Advocate as the Scottish legal Minister was concerned, but in relation to which the nature of his responsibility was said to be somewhat blurred. These functions related primarily to the reform of the private law, the administration of the courts and various judicial and quasi-judicial tribunals and relations generally with the legal profession in Scotland, including the operation of the Legal Aid Scheme.

Devolution

2.14 Devolution, with the establishment of a devolved Scottish Parliament and Scottish Government in terms of the Scotland Act 1998, resulted in significant changes to the roles of the Lord Advocate within government. These changes are reflected below and in the description of the current functions of the Lord Advocate.

2.15 On a general comparison with England and Wales, the responsibilities of the Scottish Law Officers have historically been much wider than those of the Law Officers for England and Wales. Scotland has had a system of public prosecution headed by the senior Law Officer since the sixteenth century, in contrast to England and Wales. The Scottish Law Officers have had wider powers than their English and Welsh counterparts in the broader area of public policy related to the administration of justice.

Solicitor General for Scotland

2.16 The Solicitor General for Scotland is appointed by Royal Warrant.

2.17 The origins of the office go back to 1587 with the first appointment of the King’s Solicitor.

2.18 In the absence of a Lord Advocate in office, the Solicitor General takes over full responsibility for the exercise of all of the functions of the Lord Advocate. There have been circumstances where a Lord Advocate has been appointed to the Court of Session Bench and pending the appointment of a successor, the Solicitor General for Scotland has assumed all the powers and functions of the Lord Advocate. In such circumstances, indictments run in the name of “Her/His Majesty's Solicitor for Scotland”. Provision is made in section 2 of the Law Officers Act 1944 that any function whatsoever to be discharged by the Lord Advocate may be discharged instead by the Solicitor General for Scotland if the office of the Lord Advocate is vacant, the Lord Advocate is unable to act owing to illness or absence, or the Lord Advocate authorises the Solicitor General to act in any particular case. Provision is also made in section 287 of the Criminal Procedure (Scotland) Act 1995 for demission from office of the Lord Advocate or Solicitor General for Scotland.

2.19 Under the Royal Warrant for the current appointee, the Solicitor General for Scotland is appointed “with full power and authority to execute the said Office of Solicitor for Us in all things relating to Our service in all Courts and to be present at all debates concerning Our affairs or the affairs of the Church….”.

2.20 On the basis of these provisions in the Royal Warrant, the Solicitor General for Scotland continues to attend the annual meetings of the General Assembly of the Church of Scotland. In modern times, these functions tend to be of a ceremonial nature.

Devolution

2.21 Prior to devolution in terms of the Scotland Act 1998, the Lord Advocate and Solicitor General for Scotland were Law Officers of the UK Government. In that role, they held a number of legal and Ministerial functions under statute and at common law. Some of these functions were viewed as necessarily the prerogative of a Law Officer and some were not. Some were about matters that were to be reserved to the UK Parliament and Government on devolution and others were devolved.

2.22 The Scotland Act 1998 created a new Scottish Law Officer for the UK Government, the Advocate General for Scotland, who is a Minister of the Crown. The office of the Advocate General for Scotland provides legal advice and services to UK Government Departments on Scots law and on the devolution settlement. The Advocate General for Scotland has ministerial duties; and statutory powers to refer to the Supreme Court any question about the legislative competence of the Scottish Parliament to pass any Bill or provision of a Bill; and powers in relation to devolution issues.

2.23 The general scheme of the devolution settlement reflected in the Scotland Act 1998, as set out in sections 52-54, is that functions conferred on the Scottish Ministers were to be exercisable by any one of them, with the act or the omission of any to be treated as the act or omission of each. The Lord Advocate and Solicitor General for Scotland were designated as Ministers. Portfolio responsibilities of a Minister would in practice be allocated by the First Minister. Executive functions exercised by UK Government Ministers were transferred to Scottish Ministers, so far as exercisable within devolved competence. The fact that the Law Officers may be able to exercise powers and be accountable for the acts or omissions of Ministerial colleagues was generally seen as unproblematic. Their role was to advise on the legal aspects of political policy as it unfolds.

2.24 As regards functions which were the prerogative of a Law Officer, an exception to the general position on collective responsibility was made for what was referred to as “retained functions of the Lord Advocate”. Section 52(5) of the Scotland Act 1998 made provision for the exception. Section 52(6) defines retained functions of the Lord Advocate to mean (a) any functions exercisable by him immediately before he ceases to be a Minister of the Crown, and (b) other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.

2.25 The default rule in paragraph (a) is that functions exercisable by the Lord Advocate immediately before he ceased to be a Minister of the Crown on 20 May 1999 continued to be exercisable by him alone following devolution, irrespective of whether they were exercisable within devolved competence or not.^[14] Paragraph (b) envisaged statutory functions being conferred on the Lord Advocate alone, where it is considered inappropriate that the function should be exercisable by other Ministers.

2.26 A number of functions of the Lord Advocate were by statute divested from the Lord Advocate by orders under section 1 of the Ministers of the Crown Act 1975, immediately prior to his ceasing to be a Minister of the Crown. A limited number of functions in reserved areas considered best held by the Scottish Law Officer in the UK Government were transferred to the Advocate General for Scotland.^[15] A much larger number of functions not seen as inherently those of a Law Officer were transferred to the Secretary of State^[16]. Then as a result of section 53 of the Scotland Act 1998, these functions were transferred to the Scottish Ministers generally if they were exercisable within devolved competence or left with the Secretary of State if not.

2.27 There are a number of current retained functions which were exercisable by the Lord Advocate prior to devolution. One principal retained function is the role as head of the systems of criminal prosecution and the investigation of deaths. For this role, additional provision was made in section 29(2)(e) of the Scotland Act 1998 which specifically excepted removal of this function from the legislative competence of the Scottish Parliament; and in section 48(5) of the Scotland Act 1998, so that any decision in that capacity is to be “taken by him independently of any person”. Provision was also made under section 57(3) of the Scotland Act 1998 to except acts in that capacity from the provisions of section 57(2) of the Scotland Act which provide that a member of the Scottish Government has no power to make any subordinate legislation, or do any other act, so far as the legislation or acts are incompatible with any of the Convention rights (rights under the ECHR Convention). Another principal retained function is providing legal advice to Scottish Ministers.

2.28 The retained functions need not be statutory, and common law functions are also therefore currently retained. An example is the enforcement of public obligations in the public interest. The exact nature and existence of these functions may not be certain and this can continue to raise difficult issues.

2.29 Retained functions are seen after 20 May 1999 as including those conferred on the Lord Advocate by the Scotland Act 1998 itself, and functions of the Lord Advocate under the Crown Suits Act 1857 as amended of bringing and defending actions on behalf of His Majesty or in the interests of the Crown, including the Scottish Administration

2.30 A number of statutory functions have subsequently been conferred on the Lord Advocate both as a matter of reserved law (for example the Companies Act 2006, section 509 (guidance for regulatory authorities: Scotland)); and otherwise, mainly related to her prosecutorial capacity (for example, Forced Marriage etc. (Protection and Jurisdiction) Scotland 2011, section 3) but there is also for example the retained reference and intervention functions conferred on the Lord Advocate under section 6 of the Retained EU Law (Revocation and Reform) Act 2023.

Investigation of deaths

2.31 The investigation of sudden and suspicious deaths is a matter important to society. This has been long recognised across different cultures. In 1250, Sung Tzu compiled the His Yuan Lu, a work containing instructions for the investigation of deaths by public officials of the Chinese Sung Dynasty. In England, the coroner had a role in relation to sudden and suspicious deaths by the 13th century.^[17]

2.32 In Scotland the investigation of sudden and unexpected deaths is undertaken in the first instance by the public prosecutor. The responsibility of the procurator fiscal in Scotland to investigate unexpected deaths, and not just those which appeared to be attributable to criminality, was well established in the nineteenth century. So too was the principle that this work was subject to the direction of the Lord Advocate.

2.33 The background to this position in Scotland is as follows. In 1858 a General Order issued from the Lord Advocate to procurators fiscal, requiring procurators fiscal to make inquiry into all cases of death by accident, of sudden death, of suicide or sudden death of a prisoner or a person in custody and wherever the discovery of a dead body came to the fiscal’s attention from the police or otherwise; and in each case, to report the matter to the Crown Agent (the General Order was quoted in an article in the Journal of Jurisprudence).^[18] In 1897 it was noted that the fiscal is bound to investigate every fatal accident, of whatever description it may be, which happens within their jurisdiction, with a view to the elucidation of all the facts connected with the accident and the death of the individual.^[19]

2.34 As regards the development of arrangements for publicly inquiring into certain categories of death, the earliest legislative provision for public inquiries into deaths in Scotland concerned deaths in prisons. From 1868, for prisoners who had been hanged in accordance with the sentence of the court within a prison, and from 1877 any prisoner who had died within a prison. The Fatal Accidents Inquiry (Scotland) Act 1895 provided for public inquiries before the sheriff and a jury of seven in cases of death of any person engaged in an industrial employment or occupation in Scotland, due, or reasonably believed to be due, to an accident occurring in the course of such employment or occupation. The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 provided that in any case of sudden or suspicious death in Scotland, the Lord Advocate could, whenever it appeared to him to be expedient in the public interest, direct that a public inquiry into such death and the circumstances thereof be held.

2.35 These laws were replaced by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. Following Lord Cullen's review of the legislation^[20], the 1976 Act was replaced by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.